Legalized marijuana has some employers holding their breath

KANSAS CITY, Mo. – Companies in the meat and poultry processing industry are behooved to keep their workplace safe, both to ensure productivity is maintained and to avoid injuries or death of workers, which can also lead to costly litigation. In developing strategies to keep workers safe and to limit exposure to lawsuits, today’s employers face new challenges and situations that can’t be ignored. Richard Alaniz, a labor attorney and partner with Houston-based Cruickshank & Alaniz LLP, addressed some of these issues during a July 19 presentation at the 2018 American Association of Meat Processors convention and exposition. Alaniz is also a longtime contributing editor to MEAT+POULTRY.

In recent years, the legalization of marijuana use by some states, whether recreationally or for medical reasons, has created new challenges in the workplace, especially in meat and poultry processing operations, where operating heavy machinery and handling sharp knives are common. Alaniz pointed out that currently, 28 states have approved the legal use of medical marijuana and eight states have legalized the recreational use of it in addition to all of Canada. Despite the proliferation of such laws, “You can have a drug-free workplace policy and you can enforce it and you can terminate somebody if they have drugs present in their system,” Alaniz said, because federal law makes marijuana an illegal drug. In certain states, there are exceptions, and Alaniz said he is aware of a few cases in the Northeast where states like Massachusetts and Rhode Island protect employees from being terminated if they are using marijuana for medical reasons. Looking forward, other states will likely follow suit now that the precedent has been established. “My prediction is we’re going to see more of them,” he said of wrongful termination cases against employers by employees claiming they are medically authorized to use marijuana.

“We’re going to see a proliferation of this,” he said, “it’s just too common.”

Meanwhile, testing of employees is another challenge, because there are currently no reliable tests that indicate the level of marijuana present in a person’s system. Additionally, “It’s very difficult to quantify exactly what level is necessary for them to be considered impaired,” he said, which is why most employers test for any presence of the drug in an employee’s system.

Alaniz provided processors with some tips to limit their exposure to lawsuits related to the use of marijuana by employees. His advice included:

Implement a drug-free workplace policy.

Inform employees that they are subject to testing under two situations as a condition of employment, including: post-accident testing and reasonable suspicion.

Educate supervisors and managers to be able to identify signs of impairment. He advised reaching out to local police departments or other law enforcement agencies where there often is free training and resources available.

Alaniz said another threat to safety in the workplace that is becoming more common is the abuse of opioids by employees who show up for work and are impaired, which can endanger the life of the person taking the drugs and their coworkers. Again, he said this is another situation where the ability of supervisors to detect impairment can prevent serious injuries or worse.

“You cannot ask somebody to tell you what medications they’re taking,” Alaniz said, because that would violate their protection by the Americans with Disabilities Act. Employers can suggest that employees inform them if they are taking a potentially impairing drug. While not aware of any accidents or deaths in the workplace that were directly attributable to opioid abuse, he said it is a looming threat for employers to consider. “You may want to adopt a policy saying, ‘if you’re taking any drug that may impair you, please let us know,’” Alaniz said, specifically for workers performing safety-sensitive jobs, which includes working on the processing line.